Austic v The State of Western Australia
[2020] WASC 211
•9 JUNE 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: AUSTIC -v- THE STATE OF WESTERN AUSTRALIA [2020] WASC 211
CORAM: DERRICK J
HEARD: 9 JUNE 2020
DELIVERED : 9 JUNE 2020
FILE NO/S: INS 106 of 2008
BETWEEN: SCOTT DOUGLAS AUSTIC
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Applicant charged with wilful murder - Application for bail under s 7B(3) and s 15(1) of the Bail Act 1982 (WA) - Whether exceptional reasons for not keeping applicant in custody - Whether bail may properly be granted having regard to questions posed in cl 1 of pt C of sch 1 of the Bail Act 1982 (WA)
Legislation:
Bail Act 1982 (WA)
Bail Amendment Act 2008 (WA)
Criminal Code (WA)
Criminal Code Act 1913 (WA)
Criminal Law Amendment (Homicide) Act 2008 (WA)
Sentencing Act 1995 (WA)
Result:
Application allowed
Category: B
Representation:
Counsel:
| Applicant | : | Mr D Grace QC & Dr C J Hampson |
| Respondent | : | Ms A L Forrester SC & Ms C A Cullen |
Solicitors:
| Applicant | : | Legal Pathways Pty Ltd |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Austic v The State of Western Australia [2010] WASCA 110
Austic v The State of Western Australia [2020] WASCA 75
Bertolami v The State of Western Australia [2009] WASC 269
Broad v Haas [2002] WASC 155
De Faria v The Queen [2012] WASCA 256
Emile-Bruning v The State of Western Australia [2016] WASC 211
Fazzari v The State of Western Australia [2004] WASC 71
Hedgeland v The State of Western Australia [2011] WASC 181
Hoddy v Hawes [2003] WASC 22
James v The State of Western Australia [2013] WASC 235
Jones v The State of Western Australia [2014] WASC 234
Mansell v The State of Western Australia [2011] WASC 170
Mikhail v The State of Western Australia [2010] WASC 238
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
Milivojevic v R [1999] WASC 196
Rayney v The State of Western Australia [2011] WASC 3
Shrivastava v The State of Western Australia [2010] WASCA 96
The State of Western Australia v Sturgeon [2005] WASC 256 (2005) 158 A Crim R 34
YSN v The State of Western Australia [2017] WASCA 155
DERRICK J:
(These reasons were delivered extemporaneously and have been edited from the transcript.)
Introduction
The applicant was charged on an indictment which alleged that on or about 9 December 2007 at Boddington he wilfully murdered Stacey Robyn Thorne (the deceased), contrary to s 278 (repealed) and s 282 (repealed) of the Criminal Code (WA) (the Code).
On 6 April 2009 the applicant was convicted after trial before a jury of the charged offence. The trial judge sentenced the applicant to life imprisonment with a minimum non‑parole period of 25 years.[1] The commencement date of the applicant's sentence was backdated to 14 December 2007, the day on which the applicant was charged and taken into custody.
[1] On 1 August 2008 s 10 and s 19 of the Criminal Law Amendment (Homicide) Act 2008 (WA) came into operation. By these provisions the offence of wilful murder and the penalty of strict security life imprisonment were abolished. Also, the then existing offence of murder was repealed and a new offence of murder was created with accompanying changes to penalty. In accordance with s 740 and cl 2(3) of the Code, these being the transitional provisions applicable to the legislative amendments enacted by s 10 and s 19 of the Criminal Law Amendment (Homicide) Act, the applicant was sentenced under s 279(4) of the Code and s 90 of the Sentencing Act 1995 (WA) notwithstanding that the wilful murder offence of which he had been convicted was alleged to have been committed on 9 December 2007 (that is, before the enactment of the Criminal Law Amendment (Homicide) Act.
The applicant appealed against his conviction and sentence. On 11 June 2010 the appeals were dismissed.[2]
[2] Austic v The State of Western Australia [2010] WASCA 110.
On 19 February 2018 a petition for the exercise of the Royal Prerogative of Mercy in relation to the applicant was presented on his behalf to the Attorney General of Western Australia.
On 20 April 2018 the applicant's petition was, pursuant to s 140(1)(a) of the Sentencing Act 1995 (WA), referred by the Attorney General to the Court of Appeal for the whole case to be heard and determined as if it were an appeal by the applicant against his conviction. I will from this point onwards describe the petition referred to the Court of Appeal as the appeal.
On the appeal the applicant relied on two grounds.[3] By ground 1 the applicant alleged that the verdict of guilty on which his conviction was based should be set aside because, having regard to the evidence adduced at trial and additional evidence adduced on the appeal, it was unreasonable or could not be supported.[4] By ground 2 the applicant alleged, further or in the alternative to ground 1, that there had been a miscarriage of justice requiring the verdict of guilty to be set aside.[5]
[3] Austic v The State of Western Australia [2020] WASCA 75 [245].
[4] Criminal Appeals Act 2004 (WA), s 30(3)(a).
[5] Criminal Appeals Act, s 30(3)(c).
On 14 May 2020 the Court of Appeal allowed the appeal on ground 2.[6] The Court of Appeal set aside the applicant's conviction for wilful murder and ordered a new trial.[7]
[6] Austic v The State of Western Australia [2020] WASCA 75 [594].
[7] Austic v The State of Western Australia [2020] WASCA 75 [614], [626] ‑ [629], [632].
The applicant is currently remanded in custody. His retrial is listed to commence on 26 October 2020 and is estimated to run for approximately six weeks.
The applicant now applies to be released on bail pursuant to s 7B(3) and s 15(1) of the Bail Act 1982 (WA) (the Act). The applicant has filed in support of the application an affidavit sworn by him on 21 May 2020.
The State opposes the application.
The alleged facts of the State's case
The alleged facts of the State's case are, in summary, as follows.
The applicant and the deceased had known each other for many years. They had been involved in a casual sexual relationship for about 12 months before the deceased's death.
The deceased was 34 years old. She was 22 weeks pregnant at the time of her death. The applicant was the father of her unborn child.
The deceased lived in a home unit (being unit 3) at 3 Hill Street in Boddington. The applicant lived at 3 Hotham Avenue in Boddington. The distance between their homes was about 350 m.
The applicant kept his relationship with the deceased a secret. He went to her home only for the purposes of sex. The visits were made when he was drunk.
On 29 November 2007 the applicant sent to the deceased a text message in which he begged and pleaded for the deceased not to have her baby.
On the evening of Sunday 9 December 2007 the applicant went to the Boddington Hotel. He became intoxicated. Staff at the hotel asked him to leave. He did so.
After leaving the Boddington Hotel the applicant went to the deceased's home. He arrived at about 7.45 pm. He stayed there for some time and had sexual intercourse with the deceased.
The applicant then walked to his home. He arrived home at some time before 10.00 pm. His housemates Mr Craig Kemp and Mr Steven Henson were present.
Mr Kemp went to bed at about 10.30 pm. Soon afterwards the applicant walked back to the deceased's home.
On arriving at the deceased's home the applicant stabbed the deceased a significant number of times with a knife. The stabbing occurred in the deceased's bedroom.
The applicant then walked back to his home leaving the deceased to die. He walked through a paddock between the deceased's home and his own home to avoid detection. During this time he threw away the knife that he had used to kill the deceased.
On arriving home the applicant set about destroying evidence that could implicate him in the deceased's murder. In particular, he burned his clothes in a wood fire heater and had a shower during which he washed the thongs that he had been wearing to remove traces of the deceased's blood.
Later the applicant took other steps to avoid detection. These included telling lies to the police who were investigating the deceased's murder. One of the lies he told related to the clothes that he had been wearing when he went to the Boddington Hotel and the deceased's home.
The applicant's defence
The applicant denies that he was the person who killed the deceased.
The applicable statutory provisions
Both parties have proceeded on the basis that the application is properly made under, and must be determined by reference to, the current provisions of the Act, specifically s 7B(3), s 13(1), s 15(1), and cl 1, cl 3 and cl 3C of pt C of sch 1. Implicit in the parties' approach is an acceptance of the proposition that s 7B and cl 3C apply to the determination of the application notwithstanding that these provisions did not exist at the time that the applicant was arrested and charged with the wilful murder offence. These provisions were inserted into the Act by the Bail Amendment Act 2008 (WA) and came into operation on 1 March 2009.
It may, I think, be accepted that provisions of the Act that impact upon a person's right to apply for bail, and upon the determination of any such application by the judicial officer in whom the necessary jurisdiction is vested, such as the sections and clauses of the Act referred to in the previous paragraph, do not operate retrospectively.[8] It follows that such provisions do not apply to a person whose right to apply for bail under the Act, and whose right to have his or her application considered in accordance with the Act, arose before the provisions came into operation.
[8] Milivojevic v R [1999] WASC 196 [19] ‑ [24].
The applicant was charged with the offence of wilfully murdering the deceased on 14 December 2007. He was taken into custody on that date. Thus as at 14 December 2007 the applicant had a right to apply for bail under the Act and to have his application considered in accordance with the Act.[9] As I have already pointed out, as at 14 December 2007 s 7B and cl 3C of pt C of sch 1 of the Act did not exist.
[9] Milivojevic v R [25]; Act, s 5(1) and s 5(2).
Although the applicant had a right to apply for bail under the Act and to have his application considered in accordance with the Act from the time that he was charged and taken into custody on 14 December 2007, the right no longer existed from the time of his conviction and sentencing for the charged offence. It was not until 14 May 2020, the date on which the applicant's conviction was set aside by the Court of Appeal, that the applicant again had vested in him by the Act a right to apply for bail and to have his application considered in accordance with the Act.[10] As at 14 May 2020, s 7B and cl 3C of pt C of sch 1 of the Act were in operation. In these circumstances I am satisfied that the parties are correct in their acceptance of the proposition that s 7B and cl 3C apply to the determination of the application notwithstanding that these provisions did not exist at the time that the applicant was arrested and charged with his offence.[11]
[10] Act, s 5(1) and s 5(2).
[11] Section 7B and cl 3C of pt C of sch 1 were inserted into the Act by the Bail Amendment Act 2008 (WA) and came into operation on 1 March 2009.
It is to be noted that s 7B, s 15 and cl 3C of pt C of sch 1 do not contain any reference to the offence of wilful murder. However, by reason of s 3(2) of the Criminal Code Act 1913 (WA) the use of the term 'murder' in these provisions of the Act must be read as including the offence of wilful murder as it existed under the Code prior to its abolition by the above referred to Criminal Law Amendment (Homicide) Act.
Clause 3C and the applicable legal principles
Section 13 of the Act provides that the jurisdiction to grant bail is to be exercised subject to, and in accordance with, pt 3 of the Act and pt B, pt C and pt D of sch 1 of the Act.
Of particular relevance in the present context is cl 3C of pt C of sch 1 of the Act which relevantly provides as follows:
Notwithstanding clause 1 … or any other provision of this Act, where an applicant is in custody ‑
(a)awaiting an appearance in court before conviction for an offence of murder; or
(b)waiting to be sentenced or otherwise dealt with for an offence of murder of which the applicant has been convicted,
the judicial officer in whom jurisdiction is vested shall refuse to grant bail for the offence unless the judicial officer is satisfied that ‑
(c)there are exceptional reasons why the applicant should not be kept in custody; and
(d)bail may properly be granted having regard to the provisions of clauses 1 and 3 ...
The Act does not define the term 'exceptional reasons'. Moreover, the courts have refrained from attempting to provide any sort of list of 'exceptional reasons'. However, in Shrivastava v The State of Western Australia[12] Mazza J said that the use of the word 'exceptional' denotes something which is unusual, out of the ordinary, in some way special or an exception to the general trend of cases. His Honour said that what might constitute exceptional reasons would depend upon the facts in each particular case.
[12] Shrivastava v The State of Western Australia [2010] WASCA 96 [28] ‑ [32].
Mazza J's comments were confirmed in De Faria v The Queen.[13]
[13] De Faria v The Queen [2012] WASCA 256 [13].
A single matter or a combination of matters may constitute exceptional reasons.[14]
[14] Broad v Haas [2002] WASC 155 [15]; Hoddy v Hawes [2003] WASC 22 [61] Bertolami v The State of Western Australia [2009] WASC 269 [9]; Mansell v The State of Western Australia [2011] WASC 170 [3]; Emile-Bruning v The State of Western Australia [2016] WASC 211 [6].
The rationale for the requirement that bail should only be granted in wilful murder and murder cases if there are exceptional reasons for not keeping an accused person in custody is that there is a strong inference that a person facing a wilful murder charge or a murder charge is likely to abscond or fail to appear in accordance with his bail undertaking given the severity of the sentence of imprisonment likely to be imposed if guilt is proven.[15]
[15] Fazzari v The State of Western Australia [2004] WASC 71; Emile‑Bruning v The State of Western Australia [7].
The strength of the prosecution case may be a relevant consideration in determining if there are exceptional reasons for not keeping an accused person in custody. If the prosecution case is a particularly weak one or it can be said that there is a high probability of acquittal, it may be that exceptional reasons for granting bail will exist.[16] In such a case the inference that there is a strong incentive for an applicant to abscond may not be able to be so readily drawn. However, to suggest that the prosecution case is merely not strong or not an overwhelming one is unlikely to meet the criteria of exceptional reasons.[17]
[16] Bertolami v The State of Western Australia [16]; Emile‑Bruning v The State of Western Australia [8]; Jones v The State of Western Australia [2014] WASC 234 [7].
[17] Emile‑Bruning v The State of Western Australia [8]; Jones v The State of Western Australia [7].
In cases involving a charge of wilful murder or murder a lengthy delay in proceeding to trial is a regrettable common experience for accused persons. Nonetheless, an unusually long delay before an accused charged with wilful murder or murder can be tried may, in some circumstances, either by itself or in combination with other factors (such as the degree of strength of the prosecution case), amount to an exceptional reason for not keeping an accused in custody.[18] The strength of the prosecution case will be relevant to the determination of whether an unusually long delay before an accused charged with wilful murder or murder can be tried amounts, either by itself or in combination with other factors, to an exceptional reason for not keeping them in custody pending their trial.[19]
[18] The State of Western Australia v Sturgeon [2005] WASC 256 (2005) 158 A Crim R 34 [50]; Mikhail v The State of Western Australia [2010] WASC 238; Rayney v The State of Western Australia [2011] WASC 3; Hedgeland v The State of Western Australia [2011] WASC 181; Jones v The State of Western Australia [8].
[19] Mikhail v The State of Western Australia [10] ‑ [11].
A common approach to take to cl 3C is to first consider whether there are exceptional reasons why an accused should not be kept in custody and then, if exceptional reasons are established, to consider if bail may properly be granted having regard to the provisions of cl 1 and cl 3.[20]
[20] James v The State of Western Australia [2013] WASC 235 [23].
Clause 3C(c): Are there exceptional reasons for not keeping the applicant in custody?
The applicant submits that there are circumstances which, considered in combination with each other, justify the conclusion that there are exceptional reasons for not keeping him in custody. The circumstances pointed to by the applicant are as follows:
1.The amount of time that he will have spent in custody prior to his retrial if he is not granted bail;
2.The current strength of the State's case as compared to the strength of its case at his first trial;
3.The difficulties that he will face in preparing his case for the retrial if he remains in custody; and
4.His personal circumstances.[21]
[21] Applicant's outline of submissions [34].
The State submits that the applicant has not established that there are exceptional reasons for not keeping him in custody. More specifically, the State submits that the amount of time that the applicant has already spent in custody is not an exceptional reason for not keeping him in custody having regard to the strength of its case, the seriousness of the charged offence, the high likelihood of the imposition on the applicant of a lengthy term of imprisonment if he is convicted and the absence of any further significant delay between now and the applicant's retrial.[22]
Time in custody
[22] Respondent's outline of submissions [11], [22].
The applicant has been in custody in respect of the charged offence since his arrest on 14 December 2007, that is, for approximately 12 years and 6 months. Therefore, by the time of his retrial he will have been in custody for an offence for which he must now obviously be treated as not having been convicted of for a period of a little in excess of 12 years and 10 months.
As I have already acknowledged, accused persons who have in the past been charged in this court with an offence of wilful murder commonly spent relatively significant amounts of time in custody as an unconvicted person prior to their trial. Similarly, accused persons who are charged in this court with murder commonly spend relatively significant amounts of time in custody as an unconvicted person prior to their trial. The spending of significant amounts of time in custody as an unconvicted person prior to trial is, of course, not something that is in any way desirable. It is simply an unavoidable consequence of the time that it takes to prepare a homicide case for trial and the competing demands on the court's resources.
What constitutes an unusually long time for a person charged with wilful murder or murder to be remanded in custody pending the completion of their trial may obviously change over time. A period that was previously unusually long may, due to the extent of the court's lists or factors beyond the court's control, unfortunately become the norm.
A period of approximately 12 years and 10 months is on any view of the matter an extraordinarily lengthy period of time for an unconvicted accused charged with wilful murder to be kept in custody pending their trial. It is, needless to say, a length of time that is well and truly in excess of the amount of time usually spent in custody by persons awaiting their trials in this court on charges of wilful murder or murder. It is certainly a length of time that is very much greater than the periods of time that have, in the cases to which I have referred earlier in these reasons, been accepted, either alone or in combination with other factors, as constituting an exceptional reason for granting bail.
It is, of course, the position that the amount of time that the applicant will spend in custody between now and his retrial is, in the scheme of things, relatively short, approximately four and a half months. Hence it cannot be said that there is going to be any further significant period of delay between now and the applicant's retrial. However, I do not consider that the matter can be approached on the basis that the relevant period of delay, for the purposes of determining if the applicant has established exceptional reasons for not keeping him in custody, is the period between today's date and the commencement date of his retrial. Given that the applicant must be treated as not having been convicted of the offence with which he is charged and is presumed to be innocent of the charge, there is no reason in principle why, in determining if his time in custody as an unconvicted person amounts to an exceptional reason for not keeping him in custody, account should not be taken of the time that he has already spent in custody since the date on which he was charged. To adopt the contrary approach would be to in effect penalise the applicant for the fact that it has, for a variety of reasons and through no real fault of his own, taken him many years to establish that a miscarriage of justice occurred.
For the reasons that I have given, it is my view that the length of time that the applicant will have spent in custody prior to the commencement of his retrial if he is not granted bail must be accepted as constituting an exceptional reason for not keeping him in custody unless it can be said that the prosecution case against him is an overwhelmingly strong case.
I note that in the written outline of submissions filed on behalf of the applicant it is asserted that in Emile‑Bruning v The State of Western Australia Hall J found that delay was only relevant insofar as it was coupled with his Honour's finding regarding the strength of the prosecution case.[23] This assertion is correct insofar as it goes. However, it needs to be recognised that in Emile‑Bruning the amount of time that the accused was expected to spend in custody prior to her trial was not particularly lengthy, somewhere in the vicinity of 12 months. It was in this context that Hall J expressed the view that the 'delay here is only relevant insofar as it is coupled with the factor regarding the strength of the prosecution case' (emphasis added).[24]
Strength of the State's case
[23] Applicant's outline of submissions [19].
[24] Emile‑Bruning v The State of Western Australia [26].
I turn to the issue of the strength of the State's case.
The applicant contends that the strength of the State's case, having regard to the evidence that was adduced before and accepted by the Court of Appeal in allowing the appeal, is significantly weaker than it was at the time of his first trial. The State contends that its circumstantial case was, and remains, a strong case.
The applicant's contention that the State's case is now significantly weaker than it was at the time of his first trial relies squarely on the reasoning of the Court of Appeal that led it to conclude that a miscarriage of justice had occurred. In particular, the applicant points to the Court of Appeal's finding that having regard to the evidence adduced on the appeal, and the materially different complexion which the evidence adduced at the first trial assumes as a consequence of the evidence adduced on the appeal, it is highly likely that the conduct of the defence case at the trial would have been materially different and the jury would have been presented with a State case that was materially weaker and a defence case that was materially stronger.[25]
[25] Austic v The State of Western Australia [2020] WASCA 75 [610].
Having made my own assessment of the evidence adduced on the appeal and to be adduced at the applicant's retrial, and consistently with the finding of the Court of Appeal, I am satisfied that the State's case at the applicant's retrial will be weaker than the case presented at the first trial. However, it is not, in my view, particularly useful in determining the application to attempt to perform some sort of detailed comparison between the strength of the State's case at the applicant's first trial and the strength of the State's case as it currently stands. The relevant material consideration, in my view, is simply the strength of the State's case as it currently stands.
In dealing with the appeal the Court of Appeal, although it found that ground 2 of the appeal had been made out and that a miscarriage of justice had occurred, was not satisfied that ground 1 of the appeal had been established. In dismissing ground 1 the Court of Appeal held that despite the miscarriage of justice that had occurred, the State 'had at the trial and continues to have a strongly arguable circumstantial case against [the applicant] ...[26] The Court of Appeal expressed the opinion, having made its own independent assessment of the sufficiency and quality of the evidence given at the trial, that it will be open to a reasonable and properly directed jury to be satisfied beyond reasonable doubt upon the whole of the evidence that the applicant was guilty of wilful murder.[27] The Court of Appeal set out in substantial detail its reasons for holding this opinion.[28]
[26] Austic v The State of Western Australia [2020] WASCA 75 [615], [628].
[27] Austic v The State of Western Australia [2020] WASCA 75 [616].
[28] Austic v The State of Western Australia [2020] WASCA 75 [617].
It is not necessary for me to set out herein the reasons given by the Court of Appeal for its conclusion that the State continues to have a strongly arguable circumstantial case. It suffices for me to say, having made my own assessment of the evidence to be adduced at the applicant's retrial, that I respectfully agree with and adopt the Court of Appeal's reasoning and finding in relation to the strength of the State's case. I am satisfied that the State has a strongly arguable circumstantial case against the applicant. Having said this, and consistently with the decision of the Court of Appeal in finding that a miscarriage of justice occurred and that the applicant was deprived of a fair chance of acquittal,[29] I would not say that the State's case against the applicant is so overwhelmingly strong that the applicant does not have any realistic prospect of being found not guilty. He does in my view have a realistic prospect of acquittal.
[29] Austic v The State of Western Australia [2020] WASCA 75 [612].
In light of my conclusion that the State's case against the applicant is a strongly arguable circumstantial case it necessarily follows that in my view the State's case against the applicant is a long way short of being sufficiently weak to of itself constitute an exceptional reason for not keeping him in custody pending his retrial.
Difficulty preparing defence case
In his affidavit sworn in support of the application the applicant asserts, in substance, that there is a significant amount of material that needs to be considered in order to properly prepare for his retrial, and that preparing for his retrial will be more difficult if he is kept in custody. He does not assert that he will, by reason of being kept in custody, be prevented from preparing a full and proper defence for presentation at his retrial.
I am willing to accept that it will be somewhat more difficult for the applicant to prepare his defence for his retrial if he is kept in custody. However, it is apparent that the applicant has substantial assistance available to him. Moreover, despite the complexity of the proceedings the applicant has, to date, demonstrated the ability to marshal his case fully and thoroughly despite being in custody. Further, and as I have already indicated, there is no suggestion that the difficulties that the applicant will encounter in preparing his defence while in custody will be such as to prevent him from preparing a full and proper defence. In these circumstances, the fact that it will be more difficult for the applicant to prepare for his retrial if he is kept in custody does not, either by itself or in combination with other factors, provide a basis for concluding that there are exceptional reasons for not keeping him in custody.
Personal circumstances
I turn to the contention that the applicant's personal circumstances support the conclusion that there are exceptional reasons for not keeping him in custody.
I will refer to the applicant's personal circumstances in more detail shortly. For present purposes it suffices for me to say that there is, in my view, nothing particularly unusual or out of the ordinary about the applicant's personal circumstances. In my opinion it cannot be said that the applicant's personal circumstances, either by themselves or in combination with other factors, provide a basis for concluding that there are exceptional reasons for not keeping him in custody.
Decision
As I have already stated, the length of time that the applicant will have spent in custody prior to the conclusion of his retrial if he is not granted bail will be extraordinarily lengthy. If the applicant is kept in custody until the completion of his retrial and is ultimately acquitted he will, by reason of having spent such a lengthy period of time in custody, suffer a very significant injustice. In saying this I recognise that even if the applicant is granted bail today he will still, if he is ultimately acquitted on his retrial, have suffered a very significant injustice by reason of the time that he has already spent in custody. However, the fact remains that this potential injustice will be exacerbated by the applicant being kept in custody between now and his retrial. Moreover, and as I have already stated, the prospect of the applicant being acquitted cannot be discounted. It cannot, in my view, be said that there is no realistic prospect of this occurring.
Ultimately, I have come to the conclusion that the length of time that the applicant will have spent in custody as an unconvicted person prior to the completion of his retrial, when considered in light of the strength of the State's case and the applicant's prospects of acquittal, constitutes an exceptional reason for not keeping him in custody within the meaning of cl 3C(c). In my opinion, the length of time that the applicant will have spent in custody as an unconvicted person prior to the completion of his retrial, when considered in light of the strength of the State's case, makes his case unusual, out of the ordinary or an exception to the general trend of cases.
Clause 3C(d): Should bail be granted having regard to cl 1 and cl 3?
The fact that I have found that there is an exceptional reason for not keeping the applicant in custody is not, of course, the end of the matter. As I have already pointed out, by cl 3C(d) I must also be satisfied that bail may properly be granted having regard to the provisions of cl 1 and cl 3 of pt C of sch 1 of the Act. This requires me to have regard to the questions specified in cl 1 and also any other matters that I consider to be relevant.
I turn then to deal with each of the questions specified in cl 1 of pt C of sch 1. In dealing with the questions I will apply the relevant statements of principle made by the Court of Appeal in Milenkovski v The State of Western Australia[30] and YSN v The State of Western Australia.[31]
The questions posed by cl 1
Clause 1(a)
[30] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99[39] ‑ [44].
[31] YSN v The State of Western Australia [2017] WASCA 155 [16] ‑ [21].
The first question specified in cl 1(a) of pt C is whether, if the applicant is not kept in custody, he may fail to appear in court in accordance with his bail undertaking, or commit an offence, or endanger the safety, welfare or property of any person, or interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person. Clause 1(a) is not concerned with a risk or possibility that is merely theoretical or hypothetical and would consequently apply to anyone and everyone charged with the offence with which the applicant is charged. Rather, the risk or possibility must be actual or real, as distinct from theoretical and hypothetical.[32]
[32] YSN v The State of Western Australia [17].
By cl 3 of pt C I am required, in considering whether the applicant may do any of the things mentioned in cl 1(a), to have regard to a number of matters as well as to any other matters which I consider to be relevant. The matters that I am required by cl 3 to have regard to are as follows:
1.The nature and seriousness of the offence and the probable method of dealing with the applicant for the offence if he is convicted;
2.The character, previous convictions, antecedents, associations, home environment, background, place of residence and financial position of the applicant;
3.The history of any previous grants of bail to the applicant; and
4.The strength of the evidence against him.
Nature and seriousness of offence and probable outcome
As to the first of the matters specified in cl 3, the applicant is obviously charged with a very serious offence for which he was sentenced to life imprisonment with a very lengthy minimum non‑parole period. He has only served half of the original non‑parole period of the sentence imposed. It is in these circumstances clear that if the applicant is convicted at his retrial he will still be required to serve a lengthy period of time in prison.
Current circumstances, antecedents and history of grants of bail
I turn to the second and third of the matters specified in cl 3.
The applicant is 45 years of age. He was born in Perth. He grew up in Boddington.
The applicant is an Australian citizen. He does not have a valid passport.
The applicant has two daughters, one aged 18 and the other aged 15. His older daughter lives on the campus of a university in Perth. The younger daughter lives with the applicant's mother in [suppressed].
Although the applicant has not seen his daughters outside of the prison environment since his incarceration, he has a close relationship with them. His daughters visit him regularly in prison. He often speaks to them on the phone.
The applicant's father died in November 2008.
The applicant's mother is 64 years old.
If the applicant is released on bail the proposal is that he will live with his mother and younger daughter at his mother's [suppressed] address. His mother is willing to have the applicant reside with her.
The applicant's mother does not have a criminal record. She is a person of good character.
The applicant has one brother who lives with his family in Perth. He has a great uncle who lives in Sydney and a cousin who lives in Queensland. The rest of the applicant's immediate family and friends live in this State.
The applicant does not own any property in this State or elsewhere. He does not have any money or other assets. At the time of his arrest he was residing at his house in Boddington. He sold his house before his trial so that he could pay for his legal representation.
The applicant has only left Western Australia on approximately six occasions. On three of these occasions he went to Singapore or Bali for a holiday. On the other three occasions he travelled to the eastern states to visit members of his family.
Before he was arrested on 14 December 2007 the applicant was employed as a trade assistant with BHP at the Boddington Bauxite mine site. He held that position for 13 years.
The applicant has only a minor criminal record which consists of two driving related offences and one offence of possessing cannabis. He was fined for these offences.
The strength of the evidence against the applicant
The last of the matters specified in cl 3 is the strength of evidence against the applicant. I have dealt with this issue earlier in these reasons.
Determination of the question posed by cl 1(a)
I come back, in light of the observations that I have made in relation to the matters specified in cl 3, to the question posed by cl 1(a) for determination.
The State, picking up on the words used in its written outline of submissions filed in relation to the application, 'harbours concerns' about the applicant being a flight risk if he is not kept in custody.[33] In support of this submission the State points to the inevitable outcome for the applicant if he is convicted of the charged offence, specifically a lengthy term of imprisonment. The State also 'harbours concerns' about the possibility of the applicant, if he is not kept in custody, interfering with witnesses, particularly those who are known to his family and/or reside in Boddington.[34]
[33] State's outline of submissions [28].
[34] State's outline of submissions [28].
The submission made on behalf of the applicant is that he is not, in any realistic sense, a flight risk and that there is no risk of him interfering with witnesses.
Given what I have said about the strength of the State's case, it necessarily follows that there is, in my view, a real prospect of the applicant being convicted of the charged offence. The prospect of the applicant being convicted of the charged offence, and the inevitable outcome of him having to serve a further lengthy term of imprisonment if he is convicted, supports the conclusion that there is a risk that if the applicant is not kept in custody he will abscond and/or fail to appear in court.
There are, however, other factors that need to be considered. The applicant was born in, and has spent his entire life in, this State. He has strong family ties to this State in the form of his mother and two daughters. He does not have any particularly strong family ties to other parts of the country. He has no overseas connections.
I do need to make reference in this context to the restrictions that have been imposed by the State and Federal governments in an attempt to combat the spread of the COVID‑19 virus. On 25 March 2020 the Commonwealth government introduced a ban on Australians travelling overseas save in a very limited number of circumstances none of which apply to the applicant. Further, the State government has closed Western Australia's border. These restrictions, while they are in place, will make it extremely difficult for the applicant, if he is released on bail, to abscond to another State, and near on impossible for him to abscond overseas. However, some or all of these restrictions may well not remain in place right through until the time of the applicant's retrial. This being the case I propose to put to one side the current COVID‑19 pandemic restrictions in determining if the applicant is at risk of absconding and/or failing to appear in court if he is released on bail.
Ultimately, taking the various competing considerations to which I have referred into account, and putting to one side the COVID‑19 pandemic travel restrictions, I am satisfied that the risk of the applicant absconding and/or failing to appear in court in answer to his bail if he is not kept in custody is no higher than low to moderate. I consider that despite the obvious incentive for the applicant to abscond that is created by the charge which he faces, his long term and strong ties to this State significantly diminish any such incentive.
As to the risk that the applicant, if he is not kept in custody, will commit further offences (which for present purposes I treat as encompassing endangering the safety, welfare or property of any person) I am satisfied, given the limited nature and extent of the applicant's record, that the risk of him committing further offences if he is not kept in custody is relatively low.
In relation to the risk that the applicant will interfere with witnesses or otherwise obstruct the course of justice in relation to himself or any other person if he is not kept in custody, there is nothing before me to indicate that the applicant attempted to engage in such conduct, directly or indirectly, while he was on remand prior to his first trial. Nonetheless, I think it must be accepted, given what is at stake so far as the applicant is concerned, that there is some risk of this occurring. However, on the basis of the evidence before me I am not satisfied that the risk of this occurring is significant.
Clause 1(b)
The question specified in cl 1(b) is whether the applicant needs to be held in custody for his own protection. There is nothing before me which provides a basis for concluding that the applicant does need to be held in custody for his own protection.
Clause 1(c)
The third question that I must consider, specified in cl 1(c), is whether the prosecutor has put forward grounds for opposing the grant of bail.
I have already addressed the State's grounds for opposing bail in dealing with the question posed by cl 1(a).
Clause 1(d)
The fourth question that I must consider, specified in cl 1(d), is whether, as regards the period when the applicant is on trial, there are grounds for believing that, if he is not kept in custody, the proper conduct of the trial might be prejudiced. On the material before me there are no grounds for holding such a belief.
Clause 1(e)
The fifth question for my consideration, specified in cl 1(e), is, so far as is relevant in the present context, whether there is any condition which could reasonably be imposed under pt D of sch 1 which would sufficiently remove the possibilities of the applicant absconding and/or failing to appear in court, committing any further offences and interfering with witnesses. I will return to this question shortly.
Clause 1(g)
The final relevant question, specified in cl 1(g), is whether the alleged circumstances of the offence with which the applicant is charged amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate. It might be said that in a case such as the present involving a charge of wilful murder, this question adds little to the exceptional reasons requirement contained in cl 3C and the requirement imposed by cl 3 to consider, in determining the question posed by cl 1(a), the nature and seriousness of the charged offence and the probable method of dealing with the applicant for the charged offence if he is convicted. These, of course, are matters that I have already dealt with.
Alternatively, it might be said that the question in this clause reflects the proposition that there may be some cases in which the seriousness of an alleged offence and the severity of the consequences upon conviction of themselves make it inappropriate to grant bail. If the fact that a person is charged with wilful murder was of itself sufficient to justify the conclusion that the alleged circumstances of the offence amounted to a wrongdoing of such a serious nature as to make a grant of bail inappropriate, no person charged with wilful murder could ever be granted bail. In this respect it is, I think, fair to say that while the alleged circumstances of the applicant's commission of the charged offence are self‑evidently very serious, they are not such as to of themselves render a grant of bail inappropriate. The State did not contend to the contrary.
Other relevant matters
As I have already indicated, in dealing with the application I am required by cl 1 to have regard not only to the questions specified in the clause but also any other matters that I consider to be relevant. One such other relevant matter is the amount of time that the applicant will spend in custody if he is not granted bail prior to being finally dealt with for the charge.
I have already dealt with this issue in determining that the applicant has demonstrated an exceptional reason for not being kept in custody. In this context it suffices to say that the risk to which I have already referred of the applicant suffering a significant injustice by reason of spending such a lengthy period of time in custody as an unconvicted person pending the final determination by trial of the charge laid against him, is a factor that points in favour of him being granted bail.
The imposition of conditions to sufficiently remove the risks
I come back now to the question specified in cl 1(e), specifically whether there are any conditions that can reasonably be imposed which will sufficiently remove the possibilities of the applicant, if he is not kept in custody, absconding and/or failing to appear in court, committing further offences and interfering with witnesses. I note that the question is not whether the imposition of conditions will completely remove the possibility of the applicant engaging in such conduct, but rather whether the imposition of conditions will sufficiently reduce the possibility of this occurring.[35]
[35] YSN v The State of Western Australia [2017] WASCA 155 [20].
The possibilities of the applicant, if he is not kept in custody, absconding and/or failing to appear in court, committing further offences and interfering with witnesses will be sufficiently removed by conditions where the remaining risk of him engaging in such conduct no longer constitutes a proper ground for refusing him bail.[36] The question whether the remaining risk no longer constitutes a proper ground for refusing bail must be assessed by reference to the nature and extent of the risk to the integrity of the criminal justice system and community safety, and also in light of the possibility that the applicant will suffer an injustice if he is held in custody but is ultimately acquitted of the charge.[37] As was stated by the Court in YSN v The State of Western Australia[38] this construction of cl 1(e) recognises that before bail is refused the nature and extent of the risk which the judicial officer assesses to remain after the imposition of reasonable conditions must be such as to warrant the detention of a person who has not been convicted and is presumed to be innocent.
[36] YSN v The State of Western Australia [20].
[37] YSN v The State of Western Australia [19].
[38] YSN v The State of Western Australia [20].
The applicant has indicated that he would be willing to abide by any conditions of bail including the following:
1.The provision of a personal undertaking in the sum of $100,000;
2.The provision of a surety in the sum of $100,000 to be provided by his mother;
3.A residential condition requiring him to live with his mother;
4.A reporting condition requiring him to report to the Ellenbrook police station as often as required;
5.Protective bail conditions preventing him from approaching or communicating with any witness identified by the State;
6.A condition that he is not to leave the State and is to stay away from any points of departure;
7.A condition that he is to surrender any passport and not to apply for a new or replacement passport; and
8.A condition that he is not to enter the Boddington township.
The State, for its part, supports the imposition of the conditions proposed by the applicant in the event that bail is granted. It also seeks the imposition of a number of other conditions including a curfew condition and conditions preventing the applicant from consuming alcohol.
Conditions of the type proposed are on any view of the matter stringent. The provision of a surety in the amount of $100,000, particularly if the surety is required to be provided by the applicant's mother, will be a very strong deterrent to the applicant failing to appear in court and/or absconding contrary to his bail undertaking.
Based on the material before me, I am satisfied that it is appropriate to grant the application for bail on the conditions proposed by the applicant with some additional conditions, specifically a curfew condition, conditions prohibiting the consumption of alcohol and attendance at licenced premises, conditions relating to the applicant's possession and use of a mobile phone and conditions relating to non‑disclosure of the prosecution brief. I am satisfied that the imposition of the conditions proposed by the applicant together with the additional conditions that I have in mind will sufficiently remove the possibilities (to the extent that they exist) of the applicant, if he is not kept in custody, absconding and/or failing to appear in court, committing further offences and interfering with witnesses. To put the matter more fully, when I take into account the risk of the applicant suffering an injustice by reason of being kept in custody as an unconvicted person pending his retrial, I am of the view that the risks of him absconding and/or failing to appear in court, committing further offences and interfering with witnesses will be sufficiently reduced by conditions such that the extent to which these risks remain no longer constitutes a proper ground for refusing bail.
Decision
For the reasons I have given I allow the application. The applicant is granted bail on the following conditions:
1.The applicant is to give a personal undertaking in the amount of $100,000;
2.A surety in the amount of $100,000 is to be provided by the applicant's mother;
3.The applicant is to reside at [suppressed];
4.The applicant is to remain at [suppressed] between the hours of 6.00 pm and 7.00 am each day and is to present to the front door of this address upon demand of the Western Australian Police during these hours;
5.The applicant is to report every day to the Ellenbrook police station between the hours of 8.00 am and 5.00 pm;
6.The applicant is to surrender any passport to the Principal Registrar of the Supreme Court and is not to apply for any new or replacement passport or any other form of travel documentation;
7.The applicant is not to leave the State of Western Australia or approach within 1 km of any international or domestic point of departure;
8.The applicant is not to contact or attempt to contact, directly or indirectly, by any means any family member of the deceased or any prosecution witness, save for Jodie Marie Densham with whom the applicant can communicate for the purposes of the care and custody of [suppressed] and [suppressed];
9.The applicant is not to possess and make use of more than one mobile telephone and is, on acquiring possession of the phone, to immediately notify the officer in charge of the investigation, either verbally or in writing, of the phone's service number;
10.The applicant is to present his mobile telephone to a representative of the Western Australian Police Force for inspection upon request;
11.The applicant is not to possess or consume alcohol or attend any licensed premises;
12.The applicant is to submit himself to random breath testing at the direction of an officer of the Western Australian Police Force, with a failure to provide a valid breath sample or a positive result to alcohol being a breach of bail;
13.The accused is not to possess or use illicit substances;
14.The accused is to attend urinalysis testing as directed by a community corrections officer and is to provide a valid sample for urinalysis, with a failure to provide a valid sample or a positive result to an illicit substance or alcohol being a breach of bail;
15.The applicant is not to enter the Boddington township; and
16.The applicant is not to disclose the prosecution brief or any prosecution exhibit to any person save for his legal representatives and their employees or any expert engaged for the purposes of the preparation of his defence to the charge of wilful murder.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
Associate to the Honourable Justice Derrick11 JUNE 2020
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